Merit Oil Heating Corp. v. Morfesis

Appellate Division of the Supreme Court of New York

Merit Oil Heating Corp. v. Morfesis

91 A.D.2d 604, 456 N.Y.S.2d 424, 1982 N.Y. App. Div. LEXIS 19449

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 6, 1982

StatusPublished

Cited by2 cases

This text of 91 A.D.2d 604 (Merit Oil Heating Corp. v. Morfesis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Merit Oil Heating Corp. v. Morfesis, 91 A.D.2d 604, 456 N.Y.S.2d 424, 1982 N.Y. App. Div. LEXIS 19449 (N.Y. Ct. App. 1982).

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Opinion

— Appeal by defendant, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Beisheim, J.), dated September 21, 1981, as, upon vacating a default judgment taken against him, imposed costs as a condition of the vacatur. Order reversed insofar as appealed from, with $50 costs and disbursements, and the provision imposing costs is deleted. Litigants and their attorneys have a right to rely upon the observance of court rules which provide for the postponement of a trial based on the actual engagement of counsel in another court (see Rules of Practice, Supreme Court, Westchester County, 22 NYCRR 780.5 [a]; Bock v Bock, 132 App Div 921; 7 Carmody-Wait 2d, NY Prac, § 50:43). Hence, it was an abuse of discretion for the trial court to have imposed costs on the defendant as a condition for vacating the default caused by his attorney’s actual engagement at another trial (see New York Omnibus Corp. v Associated Transport, 76 NYS2d 602; Milton Holding Corp. v Gross, 193 NYS 75). Lazer, J. P., Mangano, Gibbons and Gulotta, JJ., concur.

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— Appeal by defendant, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Beisheim, J.), dated September 21, 1981, as, upon vacating a default judgment taken against him, imposed costs as a condition of the vacatur. Order reversed insofar as appealed from, with $50 costs and disbursements, and the provision imposing costs is deleted. Litigants and their attorneys have a right to rely upon the observance of court rules which provide for the postponement of a trial based on the actual engagement of counsel in another court (see Rules of Practice, Supreme Court, Westchester County, 22 NYCRR 780.5 [a]; Bock v Bock, 132 App Div 921; 7 Carmody-Wait 2d, NY Prac, § 50:43). Hence, it was an abuse of discretion for the trial court to have imposed costs on the defendant as a condition for vacating the default caused by his attorney’s actual engagement at another trial (see New York Omnibus Corp. v Associated Transport, 76 NYS2d 602; Milton Holding Corp. v Gross, 193 NYS 75). Lazer, J. P., Mangano, Gibbons and Gulotta, JJ., concur.

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Bluebook (online)

91 A.D.2d 604, 456 N.Y.S.2d 424, 1982 N.Y. App. Div. LEXIS 19449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merit-oil-heating-corp-v-morfesis-nyappdiv-1982.

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